Citation Nr: 1300532
Decision Date: 01/07/13 Archive Date: 01/11/13
DOCKET NO. 09-02 863 ) DATE
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On appeal from the
Department of Veterans Affairs Regional Office in Los Angeles, California
THE ISSUE
Entitlement to compensation under 38 U.S.C.A. § 1151 for residuals of a back injury.
REPRESENTATION
Appellant represented by: Disabled American Veterans
ATTORNEY FOR THE BOARD
A. Michel, Associate Counsel
INTRODUCTION
The Veteran served on active duty from July 1980 to October 1982.
This matter comes to the Board of Veterans' Appeals (Board) on appeal from an April 2007 rating decision of the Department of Veterans Affairs (VA) Regional Office (RO) in San Diego, California. Jurisdiction over this claim is now with the RO in Los Angeles, California.
In evaluating this case, the Board has not only reviewed the Veteran's physical claims file, but has also reviewed the Veteran's file on the "Virtual VA" system to ensure a complete assessment of the evidence.
When this case was before the Board in March 2012, it was remanded for additional evidentiary development; it has since been returned to the Board for further appellate action.
Please note this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2012). 38 U.S.C.A. § 7107(a) (2) (West 2002).
The appeal is REMANDED to the RO via the Appeals Management Center (AMC), in Washington, DC. VA will notify the appellant if further action is required.
REMAND
In response to the Board's March 2012 remand directives, the Veteran was scheduled for a VA examination for his back in September 2012. Review of the claims files shows that the Veteran failed to appear for the scheduled examination.
The Veteran's representative submitted a statement in October 2012 and a brief in December 2012 in which it was asserted that the Veteran did not receive notice of the examination. The representative requested that the examination be rescheduled.
The Board also notes that the October 2012 statement lists a different address for the Veteran than the address noted on prior correspondence.
In addition, a Post-it note on the October 2012 statement states "moved 5/6/12 - remand 3/12/12".
(I hope this is what you were hoping to get from us...)
Karen - putting a peanut shell in Mike's water for added protein. Other than that, being a saint after driving nearly non-stop for 2 days.
Katie - tagging another van with a Bruin's sign (the van said something about Canadians, aye) while continuing her valiant pursuit of a picture of roadkill... to the point of sacrificing her body for the photo. Quote at around 3 a.m.- "Wake me up if you see a girl scout selling cookies on the side of the road."
Paul - nearly knocking the bottle of Ibuprofen out of my hand when hearing of the bet with the other van to consume fewer pills (or was that more pills)?
Mike (tall Mike) - taking "reach the beach" to epic levels by actually wading into the ocean (yeah, not warm) up to around his shins.
Deirdre - In an endless plot to avoid meeting Christian, she effectively diverted our attention with promises of more van snacks, massages, and ponies. Quote - "Wouldn't it be easier to reach the beach on a pony?"
Mike (not from Infinity) - having an epic weekend himself filled with said van snacks (namely Nerds and Sun Chips) and a mountain of free beer tokens from an awesome friend/stranger to the rest of us.
Me - experiencing stomach cramping after the last leg, holding aforementioned beer token to the sky, praying for the beer gods to relieve my pain so that I could partake in said beverage. Quote - "I think the pink Nerds are fighting the purple ones."
(One story is not real.)
~Riley
(I hope this is what you were hoping to get from us...)
Karen - putting a peanut shell in Mike's water for added protein. Other than that, being a saint after driving nearly non-stop for 2 days.
Katie - tagging another van with a Bruin's sign (the van said something about Canadians, aye) while continuing her valiant pursuit of a picture of roadkill... to the point of sacrificing her body for the photo. Quote at around 3 a.m.- "Wake me up if you see a girl scout selling cookies on the side of the road."
Paul - nearly knocking the bottle of Ibuprofen out of my hand when hearing of the bet with the other van to consume fewer pills (or was that more pills)?
Mike (tall Mike) - taking "reach the beach" to epic levels by actually wading into the ocean (yeah, not warm) up to around his shins.
Deirdre - In an endless plot to avoid meeting Christian, she effectively diverted our attention with promises of more van snacks, massages, and ponies. Quote - "Wouldn't it be easier to reach the beach on a pony?"
Mike (not from Infinity) - having an epic weekend himself filled with said van snacks (namely Nerds and Sun Chips) and a mountain of free beer tokens from an awesome friend/stranger to the rest of us.
Me - experiencing stomach cramping after the last leg, holding aforementioned beer token to the sky, praying for the beer gods to relieve my pain so that I could partake in said beverage. Quote - "I think the pink Nerds are fighting the purple ones."
(One story is not real.)
Based on the foregoing, the Board finds that good cause for failing to attend the scheduled VA examination has been demonstrated, and the Veteran should be given another opportunity to appear.
The Veteran is also advised that failure to report for any scheduled examination may result in the denial of a claim. 38 C.F.R. § 3.655.
Accordingly, the case is REMANDED for the following action:
(Please note, this appeal has been advanced on the Board's docket pursuant to 38 C.F.R. § 20.900(c) (2010). Expedited handling is requested.)
1. Verify the Veteran's current address.
2. Then, the Veteran should be afforded an examination to evaluate the nature and etiology of his current back disability, if any. The claims folder should be made available to the examiner for review before the examination; the examiner must indicate that the claims folder was reviewed.
If the Veteran does not have a current disability of the back, the examiner should so state.
Following evaluation of the Veteran, the examiner must express an opinion as to whether it is at least as likely as not that the Veteran developed additional back disability as a result of the October 2004 injury. By "additional disability", the Board means a permanent increase in the pre-existing condition that is beyond natural progression. The examiner is asked to review the record, including the indications of a pre-existing back problem.
A complete rationale for any opinion expressed must be provided, to include if the examiner concludes a response cannot be provided without resorting to speculation.
3. When the development requested has been completed, and the RO has ensured compliance with the requested actions, this case should again be reviewed by the RO on the basis of the additional evidence. If the benefit sought is not granted, the Veteran and his representative should be furnished a Supplemental Statement of the Case, and be afforded a reasonable opportunity to respond before the record is returned to the Board for further review.
The appellant has the right to submit additional evidence and argument on the matter the Board has remanded. Kutscherousky v. West, 12 Vet. App. 369 (1999).
This claim must be afforded expeditious treatment. The law requires that all claims that are remanded by the Board of Veterans' Appeals or by the United States Court of Appeals for Veterans Claims for additional development or other appropriate action must be handled in an expeditious manner. See 38 U.S.C.A. §§ 5109B, 7112 (West Supp. 2012).
_________________________________________________
JOHN J. CROWLEY
Veterans Law Judge, Board of Veterans' Appeals
Under 38 U.S.C.A. § 7252 (West 2002), only a decision of the Board of Veterans' Appeals is appealable to the United States Court of Appeals for Veterans Claims. This remand is in the nature of a preliminary order and does not constitute a decision of the Board on the merits of your appeal. 38 C.F.R. § 20.1100(b) (2012).